Stop Press: Keeping it in the family

Published 10 Oct 2011
Michael Witts

Changes to legislation are making progress towards a nationally uniform Wills and Estate system.
One area of recent significant change relates to what happens to a gift that is made in a Will to a child who dies before their parent. 
Under the old provisions, the gift would not lapse but would pass on to the estate of the child. Generally, this resulted in the spouse of the child receiving a benefit that was originally directed to the child.
Section 41 of the Succession Act now provides, in general terms, that a gift made by a parent to a child who dies before the parent, will now pass to the children of the deceased child (ie the grandchildren). The wording of the legislation is convoluted but it means that the grandchildren will take the share that the parent otherwise would have taken.
In most cases this will mean that the surviving son or daughter-in-law is excluded from receiving the gift, however, express provisions in the Will can displace the operation of this section if desired.
When does this take effect?
Section 41 of the Succession Act operates in respect of:
·          Wills made after 2008
·          Persons dying after 2008
·          Pre 2008 Wills where the child in question dies after 2008 (and before the person making the Will). 

If a beneficiary died before 2008, and the Will was made before 2008, then the old provisions under Section 29 of the Wills Probate and Administration Act would apply.